United States Exp. Co. v. Friedman

• Decision Date: 24 November 1911
• Docket Number: 3,511.
• Citation: 191 F. 673
• Parties: UNITED STATES EXPRESS CO. v. FRIEDMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 673

UNITED STATES EXPRESS CO. v. FRIEDMAN et al.

No. 3,511.

United States Court of Appeals, Eighth Circuit.

November 24, 1911

J. R Cottingham, S. T. Bledsoe, and F. H. Platt, for plaintiff in error.

F. A Youmans, for defendants in error.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

This is an action of mandamus. The relators, Lewis Friedman and Hiram Mincer, partners as Friedman & Co., are in business as dealers in intoxicating liquors at Ft. Smith, Ark. For convenience that part of Oklahoma formerly known as Indian Territory will be called by the latter name to distinguish it from the balance of that state. The United States Express Company is doing a regular express business from Ft. Smith Ark., to points in Indian Territory over the lines of the St. Louis & San Francisco Railroad and the Chicago, Rock Island & Pacific Railroad. Relators' business consists in part of the sale of intoxicating liquors in the state of Arkansas upon orders received by mail from points in the Indian Territory and the shipment of liquors under such orders to persons at points in the Indian Territory. The United States Express Company has refused generally to accept such shipments and particularly refused to accept a shipment to one J. W. Clifford, at Manford, Ind. T. There is nothing to show whether Clifford is a white man or an Indian, and if the latter, nothing to show his personal status, or whether, if an allottee, his restrictions have been removed. The prayer is, not that the Express Company be required to accept the shipment to Clifford, but for a writ of mandamus commanding the Express Company to accept from relators at Ft. Smith, Ark., intoxicating liquors for shipment from that point to any point within that portion of the state of Oklahoma formerly called the Indian Territory and for such other process, order, or judgment as may be proper. The District Court rendered judgment (180 F. 1006) as prayed by the relators, and the Express Company has brought the case here on writ of error. The action is sought to be maintained under section 10 of the Act of Congress approved March 2, 1889, 25 Stat. 862 (U.S. Comp. St. 1901, p. 3172).

The national power over the subject of the suppression of the liquor traffic with the Indians is derived from various sources: First, the treaty-making power. Second, the power to regulate interstate commerce. Third, the power to regulate commerce with the Indian tribes. Fourth, the ownership, as sovereign, of lands to which the Indian title has not been extinguished. Fifth, the plenary authority arising out of its guardianship of the Indians as an alien but dependent people.

The power of Congress to deal with the Indians is in general political in its character and not subject for that reason to be controlled by the Judicial Department. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 Sup.Ct. 216, 47 L.Ed. 299. Much as our policy with the Indians has varied on other subjects to avoid the danger to Indians and whites alike from permitting the use of liquor by the Indians, a fixed and unchanging policy has been pursued. There has never been the slightest effort to surround the traffic with regulations, but its absolute suppression has been the constant aim of Congress for more than 100 years. An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers, approved March 30, 1802, 2 Stat. 146, Sec. 21, authorized the President to take such measures from time to time as to him might appear expedient to prevent or restrain the vending or distribution of spirituous liquors among all or any of the Indian tribes. Prior to this Congress had passed several temporary laws with reference to trade with the Indians; but this was the first permanent law enacted on the subject. By the Act of March 3, 1815, 3 Stat. 243, Sec. 20, Congress prohibited all stills in the Indian country under a forfeiture of $5,000 and of all spirits there distilled and of all utensils employed therein. By the Act of May 6, 1822, 3 Stat. 682, Sec. 2, the President was authorized to direct Indian agents, Governors of territories acting as superintendents of Indian affairs, and military officers, to cause the stores and packages of goods of all traders to be searched, upon suspicion or information that ardent spirits are carried into the Indian countries by said traders in violation of said twenty-first section of the Act of March 30, 1802, and it was declared that if any ardent spirits were so found all the goods of said traders should be forfeited. The Act of July 9, 1832, 4 Stat. 564, Sec. 4, declared 'that no ardent spirits shall be hereafter introduced, under any pretense, into the Indian country. ' The Act of June 30, 1834, 4 Stat. 732, Sec. 20, imposed a forfeiture of $500 upon any person who should sell, exchange, give, barter, or dispose of any spirituous liquors or wine to an Indian in the Indian country, a forfeiture of $300 upon any one introducing or attempting to introduce any spirituous liquors or wine into the Indian country, and provided that if any superintendent of Indian affairs, Indian agent or subagent, or commanding officer of a military post, was informed or had reason to suspect that any white person or Indian had introduced or was about to introduce any spirituous liquors or wine into the Indian country, it should be lawful, under regulations of the President, to cause to be searched the boats, stores, packages, and places of deposit of such person, and if any such liquors or wine were found, provided for the forfeiture of the goods, boats, packages, and peltries of such person and for the revocation of the license of any such person if a licensed trader and that his bond be put in suit. It further provided that any person in the service of the United States or any Indian might lawfully destroy any ardent spirits or wine found in the Indian country except military supplies. Section 21 of this act imposed a penalty of $1,000 on any one who set up or continued any distillery in the Indian country and made it the duty of the superintendent of Indian affairs, Indian agents and subagents, to destroy and break up such distilleries and to use the military for that purpose. By the Act of March 3, 1847, 9 Stat. 203, Sec. 2, an additional punishment of not exceeding two years imprisonment was imposed upon the sale, exchange, barter, giving, or disposing of spirituous liquors or wine to an Indian in the Indian country and an additional punishment of one year's imprisonment upon any one who should introduce or attempt to introduce spirituous liquor or wine into the Indian country. This same act provided (section 3) that no annuity of money or goods should be paid or distributed to Indians while under the influence of any description of intoxicating liquor, nor while there was good and sufficient reason for the officers or agents in charge to believe that there was any species of intoxicating liquors within convenient reach of the Indians, nor until the chiefs and head men had pledged themselves to use all their influence and make all proper efforts to prevent the introduction and sale of spirituous liquors in their country. This provision was incorporated in section 2087 of the Revised Statutes.

In the Act of February 13, 1862, 12 Stat. 338, enacted as a substitute for section 20 of the Act of June 30, 1834, the chief change wrought was that while the old law provided for the punishment of any person who should sell, exchange, give, barter, or dispose of liquors to an Indian in the Indian country, the new law imposed a like punishment upon any one who should sell, exchange, barter, or dispose of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States whether such sale was made in the Indian country or not. A new substitute for this section was contained in the Act of March 15, 1864, 13 Stat. 29. The principal changes made were to confer jurisdiction of offenses upon the Circuit as well as the District Court, and to declare it the duty of any person in the service of the United States or of any Indian to destroy any ardent spirits found in the Indian country instead of simply making it lawful for him to do so. The provisions prohibiting the introduction of ardent spirits into the Indian country and prohibiting selling, exchanging, giving, bartering, and disposing of spirituous liquors and wine to an Indian under charge of a superintendent or agent were carried into section 2139 of the Revised Statutes; but by it sales by one Indian to another were excepted. Those provisions with reference to searches and forfeiture of goods, revocation of traders' licenses, suits on bonds, and the destruction of liquors by government employes and Indians, were all covered into section 2140 of the Revised Statutes. The provisions against distilleries in the Indian country were carried into sections 2141 and 2150 of the Revised Statutes. February 27, 1877 (19 Stat. 244), Congress amended section 2139 of the Revised Statutes by striking therefrom the words 'except an Indian in the Indian country. ' The Indian appropriation act of July 4, 1884, 23 Stat. 94, contained this provision:

'And no part of section twenty-one hundred and thirty-nine or of section twenty-one hundred and forth of the Revised Statutes shall be a bar to the prosecution of any officer, soldier, sutler or storekeeper, attache, or employe of the army of the United States who shall barter, donate, or furnish in any manner whatsoever liquors, wines, beer or any intoxicating beverage whatsoever to any Indian.'

July 23, 1892 (27 Stat. 260), Congress enacted a substitute for section 2139, Revised Statutes, by which the...